Revision to CA Pollution Rules Upheld by Ninth

SAN FRANCISCO (CN) – Environmentalists cannot challenge federal regulators for changing course after realizing that an error led them to approve regulations for the heavily polluted San Joaquin Valley, the Ninth Circuit ruled Tuesday. Complications surrounding the regulations are longstanding, but the current dispute stems from California’s previous attempt to exempt all agricultural operations from certain federal air-quality permit obligations until 2003. Since confined-animal facilities were among the largest contributors to smog the valley, the Environmental Protection Agency cited that blanket exemption in refusing to sign off on the plan California submitted to achieve air-quality goals in 2003. With its federal highway funding now in danger, California lawmakers passed Senate Bill 700 to remove the blanket exemption. That law still contained exemptions for minor agricultural sources, but the air-pollution control district for the valley submitted air-quality rules for 2004 that said all stationary sources of air pollution, whether major or minor, required the special permits of the Clean Air Act’s New Source Review program. Not recognizing the conflicted with SB 700, the EPA approved the 2004 rules without exemptions for minor agricultural sources. An environmental nonprofit organization called Association of Irritated Residents (AIR) in turn accused certain dairy farms that were minor agricultural sources under the Clean Air Act of not abiding by their New Source Review, or NSR, duties. When a federal judge considering AIR’s three federal complaints agreed that the farms had violated the 2004 NSR rules, the EPA realized that its approval of the rules was erroneous because SB 700 removed the authority of the San Joaquin Valley air-quality district to enforce the permit obligations against certain minor agricultural sources. Resolution of AIR’s suits against the farms has been stayed amid the EPA’s struggle to correct its error. AIR petitioned the federal appeals court for relief when the EPA revised the scope of its 2004 approval, limiting its approval to cover only the air pollution controls allowed by state law. Noting that the EPA’s approval followed a request for the California attorney general to interpret SB 700, a three-judge panel of the Ninth Circuit concluded Tuesday that this correction was not an abuse of discretion. “Since the statute is ambiguous and technical, it was rational for the EPA to request and accept the attorney general’s interpretation, especially since commenters, including AIR, had requested that the EPA obtain the Attorney General’s input,” U.S. District Judge Marvin Garbis, sitting by designation from Maryland, wrote for the court. The 37-page decision also emphasizes aligning the 2004 approval with state law was not arbitrary, “considering the aims and structure of the Clean Air Act’s model of cooperative federalism.” The agency’s action “was permissible in light of the fact that California law did not authorize the San Joaquin Air Control District to require permits for the agricultural sources involved,” Garbis added. Neither side could be reached for comment on Tuesday.